Condominium Law and Policy on Life Safety Issues Advisory Task Force releases its recommendations
‘Most commercial buildings have maintenance protocols and inspection protocols. Those things don’t exist in condos’
Florida high-rise condominiums should undergo a structural inspection within the next three years, according to a Real Property, Probate and Trust Law Section task force that studied the deadly Champlain Towers South collapse.
The Condominium Law and Policy on Life Safety Issues Advisory Task Force’s October 12 report contains a host of recommendations, including requiring condominiums three stories or taller to undergo an inspection by December 31, 2024, with re-inspections every five years.
However, the recommendation would exempt high-rise condominiums that have undergone a developer’s “turnover” inspection under Ch. 718.301(4)(p), “provided that an association must update such report every five years.”
Chaired by University of Miami School of Law Prof. William Sklar, the task force was formed to make recommendations to Gov. Ron DeSantis and lawmakers in the wake of the June 24 disaster that killed 98 Surfside residents.
“We worked very diligently and I’m very proud of it,” Sklar said of the report. “I’m not saying we have all the answers, we definitely don’t, I’m not saying it will definitely be adopted, but we put it all on the table very candidly.”
An outgrowth of the Condominium and Planned Development Committee, the task force was charged with “reviewing all aspects of condominium law, development, construction, association operations and maintenance” to determine if changes or additions to the law could prevent or minimize the likelihood of another tragedy.
The panel met 19 times over the past 90 days and received presentations from a variety of experts, including the secretary of the Department of Business and Professional Regulation, the Florida Association of Structural Engineers, the Building Officials Association of Florida, the Florida Association of Realtors, the Community Associations Institute, reserve analysts, insurance experts, and others.
Among the task force’s findings was that F.S. Ch. 718, “The Florida Condominium Act,” contains “no express maintenance, repair, or replacement standards for boards to follow in the Act, or in most governing documents.”
“Most commercial buildings have maintenance protocols and inspection protocols,” Sklar said. “Those things don’t exist in condos.”
The report recommends that lawmakers create new inspection protocols using a developer turnover inspection report required by Ch. 718.301(4)(p), as a model. The inspections are mandated when a developer turns the structure over to non-developer owners.
“The good news is, there’s actually something in our statute that’s a good baseline,” Sklar said.
The law lists 13 items that must be inspected, including roof, structure, fireproofing, elevators, plumbing, and electrical systems, to name a few.
The task force recommends adding “waterproofing” as an additional item — and requiring that the developer’s report also include protocols for “required maintenance, useful life, and maintenance costs” of each item. Condominium associations should be required to comply with the maintenance protocols “provided by the developer until such time as the association obtains a new maintenance protocol from a licensed professional engineer,” the report states.
Another key issue, Sklar said, was transparency.
The task force recommends that condominium associations with 100 units or more and annual revenues of $500,000 be required to have a website that is updated at least quarterly. The report recommends that associations post final inspection reports on the website within 10 days of receiving them. The report also recommends that inspection reports be provided to buyers.
“The Florida Association of Realtors agreed with us on that,” Sklar said.
The collapse spurred numerous investigations including a criminal probe. The National Institute of Standards and Technology, an arm of the U.S. Department of Commerce, is investigating the cause of the collapse.
At the time, Champlain Towers South residents were in a dispute with the association over how to pay for $15 million in repairs that were identified in an engineer’s 40-year re-inspection report. Some residents faced assessments as high as $50,000.
The tragedy cast a harsh spotlight on the lack of statewide re-inspection requirements or standards. At the time, only Miami-Dade and Broward counties required a 40-year re-inspection.
In August, Boca Raton enacted an ordinance that requires buildings taller than 50-feet or three stories to undergo a recertification every 30 years.
Palm Beach County is considering a similar ordinance, with different intervals depending on whether a structure is east or west of I-95, Sklar said.
Sklar said the task force was unwilling to recommend waiting decades for a re-inspection.
“That’s fine, you can do that, pick your number based on the estimated life of a building,” Sklar said. “But we said, that’s not good enough.”
The task force also recommends that condominium associations be given clear authority to assess residents for maintenance and repairs, and the authority to borrow.
The report recommends that by December 31, 2026, associations be required to establish a fund that would generally be equal to or greater than 50% of the cost of replacing each component in the inspection report “based on the estimated remaining useful life.”
Critics pointed to a provision of Florida law that allows condominium boards, with a 50% vote, to waive a requirement to maintain adequate reserves. The report recommends that the threshold for waiving the requirement be raised to 75% of voting board members, and that no association be allowed to waive mandatory reserves below the 50% statutory requirement.
The report also recommends that lawmakers create a “cause of action” that would allow unit owners to sue condominium associations that fail to meet inspection, maintenance, and other requirements.
The report also recommends that “appropriate federal state and local housing finance and affordable housing administration agencies” create programs that would help low-income owners pay for special assessments.
The report cites the “PACE” program, which is designed to help elderly residents age in place, and the “Sadowski” affordable housing trust fund, as models.
The report also recommends that lawmakers stop diverting money from a trust fund supported by a $4 annual surcharge on each condominium unit that supports DBPR’s Division of Condominiums, Mobile Homes and Time Shares. The report recommends that lawmakers set aside at least 30% of the trust fund for programs to train and educate “directors, officers, and unit owners.”
“Given that there are 27,000 condominium associations and what is estimated to be almost 3,500,000 Florida condominium residents, the task force believes that education of directors, officers and unit owners as to their specific obligations and statutory requirements in issues involved in association management, operation and maintenance is imperative.”